R v Fakhreddine

[2023] NSWSC 1324

Supreme Court

New South Wales

Medium Neutral Citation:	R v Fakhreddine [2023] NSWSC 1324
Hearing dates:	01 November 2023
Date of orders:	01 November 2023
Decision date:	01 November 2023
Jurisdiction:	Common Law - Criminal
Before:	Harrison J
Decision:	The evidence is not admitted.
Catchwords:	CRIMINAL LAW – murder – evidence – investigator’s note of a Crime Stoppers report concerning a male of similar description to the deceased arguing with transgender male to female sex worker over money near deceased’s residence – where Crown must exclude all reasonable hypotheses consistent with innocence of the accused – where deceased a homosexual man with no evident interest in transgender women or sex work services – note relied on by accused for non-hearsay purpose of establishing police had other available lines of inquiry they ultimately did not pursue – accused likely to give evidence of a counterfactual to Crown case, not likely to inculpate an unknown transgender sex worker
Legislation Cited:	Evidence Act 1995 (NSW) ss 69, 135
Category:	Procedural rulings
Parties:	Rex (Crown) Naji Fakhreddine (Accused)
Representation:	Counsel: S Traynor (Crown) J Ellis (Accused) Solicitors: Office of the Director of Public Prosecutions (Crown) One Group Legal (Accused)
File Number(s):	2021/75628
Publication restriction:	Nil

jUDGMENT

1. HIS HONOUR: Former Detective Margaret Ashburn was cross-examined by counsel for Mr Fakhreddine. Ms Ashburn was at one stage the officer in charge of the investigation into the murder of Bernd Lehmann. Mr Fakhreddine is on trial charged with that offence.

2. The evidence in the proceedings so far uncontroversially reveals that Mr Lehmann was a gay man who regularly engaged in sexual activity with casual partners who he would meet at clubs and invite back to his apartment. His death on February 12, 2008, as the result of a brutal assault led investigators on a line of inquiry to determine the possible extent of the relationship, if any, between his death and the community or social groups in which he circulated or with whom he associated. None of these police inquiries was successful in producing any significant information or assistance. Mr Fakhreddine was not arrested until 17 March 2021.

3. Prior to Mr Fakhreddine’s apprehension, the police posted a reward notice offering $1million for information leading to the arrest of any person in connection with the murder. On Thursday 25 February 2021, certain information was provided anonymously to Crime Stoppers. On 22 March 2021, Ms Ashburn, then a Detective Senior Constable, created an investigator’s note based on the Crime Stoppers report in the following terms:

“At 19:06 hrs on Thursday 25 February 2021 the following information was received by Crime Stoppers. I465467492

‘In 2008 there was a guy that was murdered in Ashfield; Last name Lehmann.

There was a guy that looked like him arguing with a Transgender Male to Female Sex Worker at about 21:00.

It was sometime in February, as it was hot.

There were a couple of different houses in Alt Street that were used for sex work.

A guy wearing glasses was arguing with a Transgender Male to Female Sex Worker that was about five foot eleven or six foot, and very thin. It was either a darker skin Thai girl or a man that was pre-op.

It sounded like it was about money and that he did not pay her enough.

The person matching the description Lehmann looked about 55 at the time.

Arguments out the front of the houses that were used for sex work was not uncommon and it was usually about money.

Two sex work houses in Alt Street had sex workers that were of Thai in ethnicity.’

Police confirmed with crimestopper via email that the author was ‘confidential’.

Police are unable to identify any persons given the limited information provided. A search of COPS was not successful.”

4. The Crown bears the onus in these proceedings of excluding the reasonable possibility that someone other than Mr Fakhreddine murdered Mr Lehmann. It seems clear that the investigator’s note would not be admissible for a hearsay purpose having regard to the terms of s 69(3)(b) of the Evidence Act 1995, which in context provides as follows:

Exception: business records

(1) This section applies to a document that:

(a) either:

(i) is or forms part of the records belonging to or kept by a person, body or organisation in the course of, or for the purposes of, a business; or

(ii) at any time was or formed part of such a record; and

(b) contains a previous representation made or recorded in the document in the course of, or for the purposes of, the business.

(2) The hearsay rule does not apply to the document (so far as it contains the representation) if the representation was made:

(a) by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact; or

(b) on the basis of information directly or indirectly supplied by a person who had or might reasonably be supposed to have had personal knowledge of the asserted fact.

(3) Subsection (2) does not apply if the representation:

(a) was prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding; or

(b) was made in connection with an investigation relating or leading to a criminal proceeding.

5. However, Ms Ellis, on behalf of Mr Fakhreddine, proposes to cross-examine Ms Ashburn on her investigator’s note and to tender the note for the non-hearsay purpose of establishing that a report was received apparently in response to the reward offer. She submitted as follows:

“If I'm not using the representation to prove the truth of the asserted fact, the asserted fact is that there was a person who could be the deceased having an argument with a prostitute. We're not trying to establish that this was true or untrue. We are trying to show that there has been calls made but for some reason police were unable to investigate any further. Those are my submissions your Honour.”

6. Clearly enough, the burden of Ms Ellis’ ultimate submissions will be that in general terms the Crown will have failed to exclude the reasonable possibility that someone other than Mr Fakhreddine murdered Mr Lehmann. However, it is no part of Mr Fakhreddine’s response to the Crown case to say in particular that the Crown has not excluded the possibility that “a transgender male to female sex worker” as otherwise described may have been the person who murdered Mr Lehmann.

7. Having regard to the fact that the case against Mr Fakhreddine is entirely circumstantial, it can be accepted that there must exist a possibility that Mr Lehmann was killed by a third party. However, the Crown’s obligation extends only to excluding the possibility of the existence of reasonable hypotheses consistent with Mr Fakhreddine’s innocence, not hypothetical or theoretical possibilities for which there is no available support.

8. The evidence in the trial so far makes it pellucidly clear that Mr Lehmann was exclusively interested in sexual relationships with other men. There is no evidence that he was interested in, or had ever been interested in, sexual encounters with sex workers in general or transgender partners in particular. There is no evidence to suggest that he contacted escort agencies by telephone or that sex workers were ever seen or reported to have attended his apartment.

9. Nor does the investigator’s report provide any suitable or fertile line of inquiry that the police might profitably have pursued. The date of the reported incident is described only as “sometime in February” which may have been either before or after 12 February. The report was anonymous so that it was never able to be verified. The putative sex worker was described as “either a darker skin Thai girl or a man that was pre-op”, a description of limited specific identifying information or correspondingly so generic and vague as to be entirely worthless. The location of the argument said to have been observed is also not described other than apparently somewhere in Alt Street, Ashfield. In particular, the report suggests that “there were a couple of different houses in Alt Street that were used for sex work” but their addresses are not provided. The person providing the information to the police would not appear to have known Mr Lehmann but described the man in question only as “matching his description” and looking “about 55 at the time”.

10. It is important to bear in mind that Mr Fakhreddine is not contending that the report can be relied upon to prove the truth of its contents. The non-hearsay purpose that he wishes to emphasise is only that a report of this incident was made at all and that it is one of possibly several other reports that the police were unable for obvious reasons to pursue or explore. As Ms Ellis made clear, she was merely “trying to show that there has been calls made but for some reason police were unable to investigate any further”. That is obviously a submission that can be made without reference to the specific terms of this particular report and it is likely, if not certain, to be a matter that Ms Ashburn would readily concede to be correct if asked.

11. The Crown’s concern in these circumstances is that there is a danger that the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the Crown or misleading and confusing or cause or result in undue waste of time: s 135 Evidence Act 1995. At the heart of that submission is the proposition that it would not be possible by judicial direction to prevent the jury from improperly reasoning that the matters described in the report are evidence of the fact and at one extreme that an unapprehended, unidentified but disgruntled transgender sex worker might possibly be responsible for murdering Mr Lehmann. Mr Fakhreddine is not suggesting that, drawing instead upon the uncertainties surrounding unverifiable reports. However, the Crown says the danger of such illegitimate reasoning is ever present and cannot confidently be discounted.

12. The events that have occurred in the trial thus far have also served to give additional context to these concerns. Counsel for Mr Fakhreddine informed the jury on the first day of the trial that he conceded he was present at Mr Lehmann’s apartment on the day of the murder. That concession was not particularly controversial having regard to the fact that his DNA and fingerprints were deposited there in circumstances that suggested some contemporaneity with Mr Lehmann’s death. More recently, counsel for Mr Fakhreddine has indicated that Mr Fakhreddine will give evidence and say that he was in fact present at the apartment when the murder took place. It is a reasonable inference from these concessions that Mr Fakhreddine will not suggest that Mr Lehmann was killed by a tall transgender sex worker of Asian appearance, thus emphasising the Crown’s concerns that references to such a person in the investigator’s note are prone, at the very least, to be misleading and confusing. There is also a strong chance that the admission of the evidence would be unfairly prejudicial to the Crown in the sense that there is a risk that the jury may unjustifiably reason that the “identified” sex worker might possibly have been inculpated in Mr Lehmann’s death.

13. In these circumstances I consider that the investigator’s note should not be admitted and that Ms Ashburn should not be cross-examined on the report other than in general terms as one of several reports received that the police were unable upon further investigation to verify.

**********

Decision last updated: 21 March 2025